from the if-it-was-fair-use,-it-wasn't-infringement dept

There was some indication last week that the jury in the Oracle/Google lawsuit was having trouble coming to agreement, and it appears that despite some effort to try to fix that, in the end the jury remained deadlocked on a bunch of issues. However, it did decide that Google infringed on Oracle's copyright in the Java APIs it used -- but what the jury punted on was whether or not those uses were allowed via fair use. This seems a bit odd, since fair use, despite supposedly being a defense, still means that there was no infringement. So, basically the jury said that Google may have infringed... which is pretty useless for a jury. Separately, the jury rejected the idea that Google infringed on the documentation of the APIs. It also found that Google did not infringe on the comments for some of the code, but did infringe on using rangeCheck in two files. That said, the jury again punted on whether or not the use was de minimis (which, again, would mean non-infringement).

According to The Verge (who is in the court room), the jury also wasn't buying the claim that Google relied on Sun's statements saying that Google's use was okay. The jury's main problem with Google's claim here wasn't that Sun hadn't made clear that the use was acceptable. It was that there wasn't much evidence that Google actually relied on such claims from Sun. I can understand why the jury might claim this, but I wonder why it would matter. Given that Sun made clear that Google's use was acceptable, in what world could you later turn around and claim that its use was unacceptable?

Either way, the fact that the jury couldn't come to an answer on the fair use/de minimis questions effectively sinks the entire process. Google immediately asked the judge to declare a mistrial, and the judge has supposedly asked both companies to prepare arguments over whether or not a mistrial should be declared, so this is far from over.

Broken system

I really think the time has come for a total overhaul of the government systems. These things used to make perfect sense. You elect an official and they take care of coming up with the needed laws. For court you just get a jury of people from the general population.

The issue is that this system was setup back when about the most complex job out there was that of a doctor and the doctors were still using blood letting. It was not hard for someone with no prior experience farming to help settle arguments between two farmers.

The problems we are running into now though you cannot expect someone to come in off the street and understand. We are asking these elected people to be experts in advanced economics, pharmaceuticals, biology, and technology. It is just not possible for anyone to understand all these issues to the level required for them to effectively regulate.

unfortunately, yet again, people that dont understand how something works are being expected to decide whether that something is right or wrong. it seems to me to be the same as expecting the entertainment industries to understand how much money they would make if they gave customers what they wanted via the internet. basically, it's over their heads!

Let's not forgot that the judge still hasn't decided if copyright even applies and has specifically stated he would do that himself and instructed the jury to just assume it would apply so they wouldn't have to deliberate or decide on that matter of law. Honestly Alsup seemed to get it based on other court transcripts and reporting. I'd be a little surprised if he sided with Oracle on copyright-ability.

Isn't Google asking for a Mistrial?

I read it on Groklaw.

Google won everything important except for infringement on SSO. (Structure, Sequence, Organization) It is up to the judge to rule on whether SSO is even protectable. It seems he is going to rule that it is not. Judge Alsup is also to rule on whether API's are even protectable by copyright.

The Jury Is Irrelevant.

The important questions in the Google/Oracle case are questions of law, not of fact, eg. are API interfaces copyrightable, is systematic documentation of interfaces fair use, etc. There is also a big question which arises with patents as well as copyrights: to what extent are arbitrary names, numbers, and orders of parameters original? Jurymen are not entitled to make law, only to decide fact. These questions of law are not within the province of a jury, but within that of the judge and the appeal system. The case will eventually wind up in the Circuit Court of Appeals, and may or may not go to the Supreme Court. It is much too important to be left to a jury.

Re: Re:

I'm not sure if you were joking or not but it's literally true. A short list of excused potential jurors in this very case:

Woman, graduated from Berkeley. She is a program manager at Hewlett Packard (HP). Likes gardening and writing smartphone apps, a gardening app and a weather app. She is familiar with the lawsuit. She does not have opinion about the lawsuit. Married to someone who works for a member of Congress. Has kids. Served on jury before. Never a party, no military. EXCUSED.

Male: Bachelors in computer science. Director of Engineering at Cisco. No hobbies. Married. Kids. No jury, no military. Current party to litigation (patent infringement case and he is patent advisor). He is not an inventor. Did not hear much about the case. He believes he can be fair and forget what he learned in his own case. He is middle-aged, looks very intelligent, with glasses, around 50-60 years old. Has his own opinion about patents. EXCUSED.

A patent attorney. A litigator. BS in engineering and JD. Worked for a small IP firm in Mountain View. Likes pottery. Not married, no prior jury service. Representing a client in Santa Clara court. No litigation with patents or patent rights. Prosecution was with PPO. Secured one. It was re data mining. Will be able to decide the case based on the records and not supplement it. Had heard of the companies, Java, Android. Any history records or practice that may cause concern? -- Will be impartial. She is familiar with law firms. She applied for job at Morrison & Foerster but did not get it. Will not be biased against them. Never heard about the individual lawyers. Oracle asked: what do you know about Java? She: Not much.

Android? Not much.

Any prosecution in software? Not currently. In Santa Clara it is a real estate property dispute case. I represent the plaintiff.

Did you apply to Morrison & Foerster? Yes.

Google: Was offended that she didnít apply to his office. Joking.[Laughter] She is working on patents for medical devices. She is not comfortable doing software. She does internet, like Group-on application, data miming, databases.

Lady who "has dry eyes and she needs to use drops and she needs to close her eyes to rest. She is not sure how often, every two hours." NOT EXCUSED.

Copying vs Infringement

Didn't the Judge order the jury to assume that copying APIs is indeed a form of copyright infringement? If so, it's not at all surprising that they found Google's implementation to be infringing. Google did copy Java's APIs to make its own implementations of them, leaving the jury with little choice but to decide Google's version is indeed infringing under the judge's order.

It's the wrong decision, but only because the judge's order was itself drawing the wrong conclusion. At worst, Google's use of the Java APIs should be considered fair use. At best, the Java API's are merely labels used to describe particular operations which, as functional elements, should not be subject to copyright protection.

So any jury that renders a decision contrary to the views of Techdirt is "confused", "befuddled" or simply wrong. And any judge or jury deciding in a manner consistent with the Techdirt narrative is enlightened? What a joke.

Re: Broken system

We are asking these elected people to be experts in advanced economics, pharmaceuticals, biology, and technology.

I don't think we are, nor do they need to be. They could very well be writing quite simple and definitive laws, with clear explanations what those laws are designed to do.

The problem is that in order to get/keep their jobs, they end up having to get money from businesses/interest groups/etc. And those groups influence the laws, either overtly or not, so they have loopholes, special circumstances, or are written so they can be taken advantage of or directly benefit one group instead of another.

So instead of simple laws, you end up with laws that no single person can be expected to understand. Then add those to a court system that interprets and rules on those laws, and frequently the precedents arrived at come from extraordinary cases.

So I do understand where you're coming from. Unfortunately, a saying comes to mind:

Democracy is the worst form of government created, except for all the others.

Re:

So any Techdirt business model contrary to the views of the content industry is "confused", "pirate-apologist" or simply wrong. And any business model consistent with the content industry narrative is "Mike you don't understand what your talking about"? What a joke.

Re: Re: Broken system

Well my point was that if you understand an issue then I could not come up and talk you into making a bad law so easily. These people making the laws often make bad laws because they have to rely on what others tell them.

If you do not understand how the internet works then it makes perfect sense that we should just cut out the bad parts. It seems like it is a simple matter if you only have a basic knowledge of the internet. As a result when Hollywood says do it the idiots go "oh that sounds like great idea"

Re: Re: Re: Re:

Who said anything about it being remarkable? It's the way the system works: know anything about the subject at hand? You're excused, clearly your prior experience and knowledge will be prejudicial. Lawyers obviously want juries that know nothing so they can 'educate' them from start to finish on a topic before sending them into deliberations. Why fight someone's prior knowledge and experience when you can write on blank slates instead?

Re:

No, not any jury. Just the ones that disagree with themselves over pivotal matters in a copyright case such as fair use or de minimus use. If the jury can't agree with itself then it is, by definition, confused or befuddled. The jury is, quite literally, unclear on several issues as the verdict makes plain.

Re:

Code should only be copyrighted to the extent that novels and articles are - to the actual expression of code and the actual mechanics used. If even that far.

Since there are only 9 lines of codes in Andriod that match the Java APIs, out of millions of lines of codes - clearly that is not a significant portion of the work and is therefore not an issue of copyright.

This whole trial is bunk - lets move onto the patent portion that might actually have some merit!

Re: Re: Broken system

Regulatory Capture is the biggest danger with a large regulatory governments. Many people think the solution is more regulation, when in fact the solution is less. Or, more specifically, laws that are results-based and not behaviour-based.

Capitalism is the closest thing to democracy we have, yet the government keeps trying to mess with it. The solution is to have a free-for-all in the ring and have just enough government to prevent corporations from climbing out of the ring. The more power you give the refs, the more the players try and corrupt them.

Re: Re: Broken system

Regulatory Capture is the biggest danger with a large regulatory governments. Many people think the solution is more regulation, when in fact the solution is less. Or, more specifically, laws that are results-based and not behaviour-based.

Capitalism is the closest thing to democracy we have, yet the government keeps trying to mess with it. The solution is to have a free-for-all in the ring and have just enough government to prevent corporations from climbing out of the ring. The more power you give the refs, the more the players try and corrupt them.

Re: Isn't Google asking for a Mistrial?

To add to that:

"The judge has stated, pending judgment as a matter of law, that there is "zero finding of copyright liability" other than the 9 lines of code to which Oracle's damages report attributes no value. A good day for Google overall."

Re: The Jury Is Irrelevant.

"There is also a big question which arises with patents as well as copyrights: to what extent are arbitrary names, numbers, and orders of parameters original? "

If they are truly "arbitrary" then there is no question that they are not sufficiently "original" to warrant copyright protection. However, it is a factual question as to whether they are really arbitrary or the result of some modicum of intelligence/creativity.

Re: Re:

There is no indication that the jury rendered any inconsistent decisions. If Mike or you is making that claim, then he and you are confused (and/or being intentionally confusing).

I'm as big a proponent as anyone for treating infringement/fair use as the yin/yang of copyright: if there's one, there's not the other.

However, it is clear here that the jury was being asked whether there is infringement apart from the issue of the fair use defense. Saying there is infringement without deciding fair use in that context is not at all inconsistent.

It is ironic that people start criticizing others for being confused when they have only a tenuous grasp on the process/terminology at issue themselves.

Re: Re: Re: Re:

Yes, I'm sure that is well known.

You responded to examples posted in support of the claim that "the standard procedure in US jury selection (is) to weed out anybody who knows anything about the subject". Not sure why anyone would dispute that.

Re: Re:

Page 9 is where the law is spelled out in plain English (there's a very good explanation of fair use in there, the nature of the original being facts cuts hard for Google, but the others not so much, commercial being the one that cuts worse, the whether or not fair use applies is a fact, and therefore the juries decision, not the judges). Keep in mind, the judge could rule APIs are non-copyrightable (this has been the operation assumption for decades, and for some reason I think there's some rulings on this, but clearly not binding in this court). Essentially, whether or not something is creative in any manner is a matter of law, not fact, so not a matter for a jury.

Google admitted to structural similarity, and if you read the pages about the law, it would be impossible to not answer that question yes, the fair use issue is much more ambiguous.

Re: Re:

I beg to differ.

The jury was asked to decide whether Oracle had proven that Google had infringed on Oracle's copyright in the Java API, assuming Structure, Sequence and Organization of an API can be copyrighted (the last part was an explicit instruction from the judge and a matter of law that the judge will decide, but did not want to do until after the trial). Pretty reasonably, given the judge's directions, the jury found that Google had infringed. As a secondary part of the same question, they were asked whether the infringement was excused by fair use. This was the issue the jury could not decide. Given the state of copyright law in the US and the judge's directions to the jury, there was nothing unreasonable or confused about the jury's finding. With all due respect, Mike, while perhaps your view is how a reasonable law OUGHT to be, you are the one who is confused (about how the law IS).